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OP-ED: It's news, not espionage

Posted:
05/22/2013 01:12:34 PM EDT

Updated:
05/23/2013 07:23:11 AM EDT

The Obama administration has no business rummaging through journalists' phone records, perusing their emails and tracking their movements in an attempt to keep them from gathering news. This heavy-handed business isn't chilling, it's just plain cold.

It also may well be unconstitutional. In my reading, the First Amendment prohibition against "abridging the freedom ... of the press" should rule out secretly obtaining two months' worth of the personal and professional phone records of Associated Press reporters and editors, including calls to and from the main AP phone number at the House press gallery in the Capitol. Yet this is what the Justice Department did.

The unwarranted snooping, which was revealed last week, would be troubling enough if it were an isolated incident. But it is part of a pattern that threatens to redefine investigative reporting as criminal behavior.

The Washington Post reported Monday that the Justice Department secretly obtained phone and email records for Fox News reporter James Rosen, and that the FBI even tracked his movements in and out of the main State Department building. Rosen's only apparent transgression? Doing what reporters are supposed to do, which is to dig out the news.

In both instances, prosecutors were trying to build criminal cases under the 1917 Espionage Act against federal employees suspected of leaking classified information. Before President Obama took office, the Espionage Act had been used to prosecute leakers a grand total of three times, including the 1971 case of Daniel Ellsberg and the Pentagon Papers. Obama's Justice Department has used the act six times. And counting.

Obviously, the government has a duty to protect genuine secrets. But the problem is that every administration, without exception, tends to misuse the "Top Secret" stamp -- sometimes from an overabundance of caution, sometimes to keep inconvenient or embarrassing information from coming to light.

That's where journalists come in. Our job, simply, is to find out what the government doesn't want you to know.

Sometimes reporters come across information whose disclosure would genuinely put national security at risk. When officials appeal to news organizations on such grounds, editors listen.

The case involving The Associated Press is a good example. The story at issue, published last May, involved details of a CIA operation in Yemen that foiled a terrorist plot to bomb an airliner. AP chief executive Gary Pruitt said on "Face the Nation" that the news service agreed to hold the story after administration officials warned publication would threaten security. The AP published only after officials from two government entities said the threat no longer existed, according to Pruitt.

Ironically, this was a story of success in the fight against terrorism. I have to wonder whether the administration's real aim is to find out who leaked this bit of good news -- or to discourage potential leaks of not-so-rosy news in the future.

The Fox News case is even worse. At issue is a 2009 story about how North Korea was expected to react to a U.N. Security Council resolution criticizing the rogue nation's nuclear tests. The Justice Department is prosecuting Stephen Jin-Woo Kim, then an analyst working for the State Department, for allegedly leaking to Fox reporter Rosen a report about what North Korea was thought likely to do.

Prosecutors examined Rosen's phone records, read his emails and, using the electronic record left by his security badge, even tracked when he entered and left the State Department building. How did officials justify such snooping? By asserting in an FBI affidavit, according to the Post, that Rosen broke the law "at the very least, either as an aider, abettor and/or co-conspirator."

In other words, since there is no law that makes publishing this classified information illegal, the Justice Department claims that obtaining the information was a violation of the Espionage Act.

Rosen has not been charged. Every investigative reporter, however, has been put on notice.

If this had been the view of prior administrations, surely Bob Woodward would be a lifer in some federal prison. The cell next door might be occupied by my Post colleague Dana Priest, who disclosed the CIA's network of secret prisons. Or by The New York Times' James Risen and Eric Lichtblau, who revealed the National Security Agency's eavesdropping program.

A federal "shield" law protecting reporters from having to divulge their sources means nothing if it includes an exception for cases involving national security, as Obama favors. The president needs to understand that behavior commonly known as "whistleblowing" and "journalism" must not be construed as espionage.

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